Esteban Tiznado-Reyna v. William P. Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 15 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESTEBAN TIZNADO-REYNA, No. 13-72690
Petitioner, Agency No. A090-219-302
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 7, 2019
Phoenix, Arizona
Before: HAWKINS, M. SMITH, and HURWITZ, Circuit Judges.
An immigration judge (“IJ”) ordered Esteban Tiznado-Reyna removed,
rejecting his claim of derivative United States citizenship. After the Board of
Immigration Appeals dismissed Tiznado’s appeal, he filed this petition for review.
Pursuant to 8 U.S.C. § 1252(b)(5)(B), we transferred the proceedings to the district
court for a de novo nationality determination. The only disputed factual issue was
whether Tiznado’s father was born in this country, which the government agrees
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
under the facts of this case would have entitled Tiznado to derivative citizenship.
See 8 U.S.C. §§ 1401(g), 1409(a). After a trial based almost entirely on
documentary evidence, the district court found that Tiznado had not produced
“substantial credible evidence” that his father was born in the United States. In light
of the district court’s factual findings, we deny the petition for review.
1. In a § 1252(b)(5)(B) proceeding, if “the government offers evidence of
foreign birth, a ‘rebuttable presumption of alienage’ arises, ‘shifting the burden to
the [alleged citizen] to prove citizenship.’” Mondaca-Vega v. Lynch, 808 F.3d 413,
419 (9th Cir. 2015) (en banc) (alteration in original) (quoting Chau v. INS, 247 F.3d
1026, 1029 n.5 (9th Cir. 2001)). “Upon production by a petitioner of ‘substantial
credible evidence’ of the citizenship claim, this presumption bursts and the burden
shifts back to the government to ‘prov[e] the respondent removable by clear and
convincing evidence.’” Id. (alteration in original) (quoting Ayala-Villanueva v.
Holder, 572 F.3d 736, 737 n.3 (9th Cir. 2009)).
2. The district court found that Tiznado did not produce credible evidence
that his father was born in the United States. Tiznado claims that the district court
erred at the second step of the Mondaca-Vega analysis, arguing that the term
“substantial credible evidence” describes only a burden of production, satisfied by
producing evidence that, taken in light most favorable to the petitioner, is sufficient
to survive a motion for summary judgment. We disagree.
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3. A remand for the district court to engage in a de novo determination of
nationality occurs only after “the court of appeals finds that a genuine issue of
material fact about the petitioner’s nationality is presented.” 8 U.S.C.
§ 1252(b)(5)(B). Thus, the proceedings in the district court necessarily began from
the premise that Tiznado had presented sufficient evidence to avoid summary
judgment on the nationality issue. See Fed. R. Civ. P. 56(a) (authorizing summary
judgment only if “there is no genuine dispute as to any material fact”); 8 U.S.C.
§ 1252(b)(5)(A) (“If the petitioner claims to be a national of the United States and
the court of appeals finds from the pleadings and affidavits that no genuine issue of
material fact about the petitioner’s nationality is presented, the court shall decide the
nationality claim.”).
4. Mondaca-Vega emphasized that if foreign birth is established, a petitioner
must come forth with “credible” evidence in support of a claim of United States
nationality. 808 F.3d at 419. The term “credible” necessarily describes a burden of
persuasion, not production. Because a district court must, in considering summary
judgment, view the submitted evidence in the light most favorable to the non-moving
party, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), the use of the
word “credible” in Mondaca-Vega is inconsistent with a summary judgment
standard. Rather, it describes a burden of persuasion, because the only purpose of
the remand is to allow the district court to assess the weight of evidence on the issue
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of citizenship, a process that necessarily involves credibility determinations. See
Mondaca-Vega, 808 F.3d at 427. The district court did not clearly err in that
assessment here. Id. at 428 (noting that “the clear error standard ‘does not vest[] us
with power to reweigh the evidence presented at trial in an attempt to assess which
items should and which should not have been accorded credibility’”) (alteration in
original) (quoting Cataphote Corp. v. De Soto Chem. Coatings, Inc., 356 F.2d 24,
26 (9th Cir. 1966)).
5. The district court did not absolve the government of its ultimate burden to
prove non-citizenship by “clear, unequivocal, and convincing evidence.” Id. at 419.
The record here, which included not only the uncontested fact of Tiznado’s foreign
birth, but also other evidence establishing that his father was born in Mexico,
satisfied that standard. See Ramon-Sepulveda v. INS, 743 F.2d 1307, 1308 n.2 (9th
Cir. 1984) (noting that for a presumption of alienage to arise, “the government must
first present ‘clear, convincing, and unequivocal’ evidence of foreign birth”).
PETITION DENIED.
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